R v GJ

Case [2008] VSCA 222 12 November 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 113 of 2007

THE QUEEN
	v
GJ

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JUDGES:	NETTLE, WEINBERG JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2008
DATE OF JUDGMENT:	12 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 222	1^st Revision 13 November 2008

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Criminal law – Conviction – Rape – Whether judge erred in directions as to the elements of rape – Evidence – Consciousness of guilt – Lie – Whether judge erred in failing to give a Zoneff direction – Application refused – Dhanhoa v The Queen [2003] 217 CLR referred to.

Criminal law – Sentencing – Manifest excessiveness – Appellant sentenced to 12 years’ imprisonment with a non-parole period of nine years – Whether judge gave sufficient weight to youth and prospects of rehabilitation of appellant and of concurrency and totality principles – Whether judge erred in making sex offender registration order pursuant to s 11 of Sex Offenders Registration Act2004 – Appeal allowed – Appellant re-sentenced to a term of 10 years’ imprisonment with a non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Clarebrough Pica

NETTLE JA
WEINBERG JA
HARGRAVE AJA:

On 5 February 2007 the applicant was arraigned before the County Court at Melbourne on a presentment preferring 13 counts of rape (counts 1, 4, 5, 8, 9, 10, 12, 13, 21, 22, 23, 24 and 25), seven counts of intentionally causing injury (counts 2, 3, 11, 14, 16, 18 and 20), two counts of false imprisonment (counts 6 and 15), one count of make threat to kill (count 7), one count of administering a substance to another (count 17) and one count of indecent assault (count 19). He pleaded guilty to count 15 but not guilty to all other counts.

After several days of trial, on 8 February 2005 the jury returned a verdict of not guilty by direction on four counts of rape (counts 4, 5, 13 and 22) and the one count of administering a substance to another (count 17). The trial then continued to its conclusion and, after deliberating for a day, on 13 February 2007 the jury returned a verdict of guilty on seven of the counts of rape (counts 9, 10, 12, 21, 23, 24 and 25); four counts of intentionally causing injury (counts 11, 14, 16, 18); one count of indecent assault (count 19) and one count of false imprisonment to which the applicant had pleaded guilty (count 15), but acquitted the applicant of the remaining two counts of rape (counts 1 and 8), three counts of intentionally causing injury (counts 2 and 20), one count of false imprisonment (count 6) and one count of make threat to kill (count 7).

Following a plea in mitigation of penalty, on 26 April 2007 the judge sentenced the applicant as follows:
· On count 9 (rape by vaginal penetration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v GJ [2008] VSCA 222
Case: [2008] VSCA 222
Decision Date: 12 November 2008

CaseChat Overview and Summary

The appellant, GJ, was convicted of raping a woman in Victoria. GJ appealed against his conviction and sentence. The appeal was heard in the Court of Appeal in Victoria. The appellant challenged his conviction on the grounds that the judge erred in the directions given to the jury regarding the elements of rape and by failing to give a direction in line with the decision in Zoneff v R. The appellant also challenged his sentence on the grounds that the judge did not give sufficient weight to the principles of concurrency and totality, the youth and prospects of rehabilitation of the appellant and that the judge erred in making a sex offender registration order. The court found that the judge did not err in the directions given to the jury but did find that the judge should have given a Zoneff direction. However, this did not affect the safety of the conviction. The court found that the sentence imposed was manifestly excessive and that the judge did not give sufficient weight to the principles of concurrency and totality, the youth and prospects of rehabilitation of the appellant. The court also found that the judge erred in making a sex offender registration order. The appeal was allowed and the appellant was re-sentenced to a term of 10 years’ imprisonment with a non-parole period of seven years.

Orders